Basabo v. Salvation Army, Inc.

• Citation: 85 A. 120,35 R.I. 22
• Parties: BASABO v. SALVATION ARMY, INCORPORATED.
• Decision Date: 10 December 1912
• Court: United States State Supreme Court of Rhode Island

85 A. 120

35 R.I. 22

BASABO

v. SALVATION ARMY, INCORPORATED.

Supreme Court of Rhode Island.

Dec. 10, 1912.

Case certified from Superior Court, Providence and Bristol Counties.

Action by Juliano C. Basabo against the Salvation Army, Incorporated. There was a demurrer to the declaration, and the cause was certified to the Supreme Court under Gen. Laws 1909, c. 298, § 5, for determination of the question raised by the demurrer. Question answered in the affirmative, and cause remitted.

A. B. Crafts, of Providence, for plaintiff. Gardner, Pirce & Thornley, of Providence (Henry W. Gardner, of Providence, of counsel), for defendant.

PARKHURST, J. This is an action at law by the plaintiff for the death of his minor daughter alleged to have been due to the negligence of a servant of the defendant. To this declaration the defendant demurred on the ground that the defendant corporation was described in said declaration as a charitable and eleemosynary corporation, and that it was as such not liable for the torts of its servants and agents. After arguments upon the demurrer had been heard in the superior court, the case was certified to the Supreme Court for the determination of the question raised by said demurrer, as being a question of such doubt and importance, so affecting the merits of the controversy that it ought to be determined by the Supreme Court before further proceedings, under the provisions of chapter 298, § 5, of the General Laws of 1909. The question certified was framed on the language descriptive of said defendant corporation used by the plaintiff in his amended declaration, and is as follows: "Is a corporation, which is lawfully under its charter and in accordance with the purposes therein prescribed and authorized, doing business in the city of Providence for the purposes of distributing charity and assistance, and supplies of food and clothing and medicine to persons needy or sick or suffering in said Providence, and for the purposes of giving religious entertainments and instructions in said Providence and improving the morality of the people living in said city, and for all said purposes employing divers horses and teams and servants and agents in and about the streets and highways of said Providence in collecting clothing, food, supplies, medicines, and charities, and in distributing the same, and for its other purposes, liable for injuries to persons caused by the negligence of such servants and agents in the care and management of said horses and teams while employed for such purposes, where it is not shown or alleged that there has been any lack of care or diligence on the part of such corporation in the selection or retention of such servants or agents?"

The defendant's counsel contends that, under the facts stated in the question above quoted, the defendant is a charitable corporation, as to which no dispute is made by the plaintiff's counsel; and we are of the opinion that the defendant is a charitable corporation in accordance with definitions so often repeated in the cases that no citation of authority is necessary. The defendant's counsel further contends that, as such charitable corporation, it is not liable for the torts or negligence of its servants or agents, where, as is shown by the question, it has not been guilty of negligence in the selection or retention of its servants or agents, and where there is no duty undertaken requiring the exercise of special care or skill such as that of a physician or surgeon. And the defendant's counsel cites numerous cases in support of its contention; but it will be found upon examination of the cases cited, where it has been held that a charitable corporation or institution is not liable, that the great majority of them are cases where suit was brought by a patient or inmate of the hospital or institution, who was receiving the benefit of the charity at the time of the alleged injury. Some of the cases cited absolutely deny the liability of a charitable corporation in any event to pay damages for injuries arising from the negligence of its servants or agents, either to a patient or inmate or to a third party, on the ground of public policy, saying (as in Fire Ins. Patrol v. Boyd, infra) that "it would be against all law and all equity to take those trust funds, so contributed for a special, charitable purpose, to compensate injuries inflicted or occasioned by the negligence of the agents or servants" of the charity, and arguing that, if such damages were to be allowed to be paid out of the trust funds, it would tend to destroy the charity, and to discourage the giving of money or other property for the establishment of charities. Fire Ins. Patrol v. Boyd, 120 Pa. 624, 647, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879; Whittaker v. St. Luke's Hospital, 137 Mo. App. 116, 117 S. W. 1189; Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 78 Atl. 898, 33 L. R. A. (N. S.) 141; Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427; Pepke v. Grace Hospital, 130 Mich. 493, 90 N. W. 278 (no negligence shown, but approves Downes Case); Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495; Parks v. Northwestern University, 218 Ill. 381, 75 N. E. 991, 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103; Abston v. Waldon Academy, 118 Tenn. 24, 102 S. W. 351, 11 L. R. A. (N. S.) 1179; Adams v. University Hospital, 122 Mo. App. 675, 99 S. W. 453. Other cases cited, while arguing along the same general lines of public policy, limit the exemption of charitable corporations from liability for injuries occasioned by the negligence of physicians, surgeons, nurses, and servants, and agents to cases where there has been no negligence on the part of the defendants in the selection or retention of such persons. Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224; Union Pacific R. Co. v. Artist, 19 U. S. App. 612, 60 Fed. 365, 9 C. C. A. 14; Van Tassell v. Manhattan Eye & Ear Hospital, 15 N. Y. Supp. 620;¹ Eighmy v. Union Pacific R. Co., 93 Iowa, 538, 61 N. W. 1056, 27 L. R. A. 296; Plant System, etc., v. Dickerson, 118 Ga. 647, 45 S. E. 483; Railway Co. v. Buchanan, 126 Ky. 288, 103 S. W. 272, 11 L. R. A. (N. S.) 711; McDonald v. Mass. General Hospital, 120 Mass. 432, 21 Am. Rep. 529; Benton v. City Hospital, 140 Mass. 13, 1 N. E. 836, 54 Am. Rep. 436; Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. (N. S.) 481, 118 Am. St Rep. 484, 8 Ann. Cas. 1109; Thornton v. Franklin Square House, 200 Mass. 465, 86 N. E. 909, 22 L. R. A. (N. S.) 486.

We think these latter cases must be regarded as entirely inconsistent with the general proposition of the exemption of charitable corporations on grounds of public policy set forth in the previous cases, as was said in reference to many of these cases by Gaynor, J., in Kellogg v. Church Charity Foundation, 128 App. Div. 214, at page 217, 112 N. Y. Supp. 566, at page 569: "In many if not most of the eases a ground for the nonliability for the torts of agents or servants of charitable institutions is that to pay damages for such torts would be a diversion of their funds from the trust purposes for which they are donated by the charitable, and thus a contravention of the trust, and that as such institutions have no other funds it would be futile to allow judgments to be taken against them in such cases. But the opinions of the judges in these same cases almost invariably except cases where the agent or servant was incompetent and there was negligence in his selection; failing to take note that it would be as much a diversion of the trust funds to pay damages for the tort of negligence in selection as for any other tort. If the rule exist it must necessarily apply to all torts and in all cases. The only support for the argument that it does exist is found in the remarks of judges in certain rather old English cases, which were repudiated in later cases, and never had a direct application to actions of tort against charitable corporations such as are now common. It is true that an action does not lie against a trustee under a will, or the like, as such, for his torts or those of his servants in the affairs or administration of the trust. He has to be sued individually; but the reason is purely technical, and the courts allow the judgment against him individually for damages to be paid out of the trust funds, if he was free from willful misconduct in the tort. No rule, therefore, that trust funds may not be used to pay damages for torts in the administration of the trust exists even in the case of ordinary express trusts, let alone in the general trusts of charitable corporations. Powers v. Mass. Homeopathic Hospital, 109 Fed. 294 [47 C. C. A. 122, 65 L. R. A. 372]; Bruce v. Central Meth. Ep. Ch., 147 Mich. 230 [110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150]; Hewett v. Association, 73 N. H. 556 [64Atl. 190, 7 L. R. A. (N. S.) 496]. The position of such a corporation in respect of its torts would seem to be the same as that of an individual carrying on similar charitable work with donated funds or with his own funds. I do not understand that if my servant, sent out by me on an errand of mercy or charity, negligently runs over one in the street, I am not liable for his act." These views were approved by the Court of Appeals of New York (although the decision was reversed on other grounds) in Kellogg v. Church Charity Foundation, 203 N. Y. 191, 191, 96 N. E. 406 (38 L. R. A. [N. S.] 481).

We are of the opinion that the doctrine of the absolute exemption of charitable corporations is very much weakened by the position taken by the courts in these later citations, and is practically repudiated by them, whatever general remarks the courts may have made in regard thereto, when the same are submitted to a careful and logical consideration. And this is all the more apparent when we...